Gamage v. Nevada Ex Rel. Board of Regents of Higher Education

FILED
NOT FOR PUBLICATION
APR 07 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUJANIE V.S.V. GAMAGE, AKA No. 14-15292
Sujanie Gamage Samarasek,
D.C. No. 2:12-cv-00290-GMN-
Plaintiff - Appellant, VCF
v.
MEMORANDUM*
STATE OF NEVADA, ex rel. Board of
Regents of Higher Education, on behalf of
the University of Nevada, Las Vegas; a
political subdivision of the State of
Nevada; VERNON HODGE, individually
and in his official capacity as an employee
of the University of Nevada, Las Vegas,
Defendants - Appellees.
SUJANIE V.S.V. GAMAGE, AKA No. 14-17033
Sujanie Gamage Samarasek,
D.C. No. 2:12-cv-00290-GMN-
Plaintiff - Appellant, VCF
v.
STATE OF NEVADA, ex rel. Board of
Regents of Higher Education, on behalf of
the University of Nevada, Las Vegas; a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
political subdivision of the State of
Nevada; VERNON HODGE, individually
and in his official capacity as an employee
of the University of Nevada, Las Vegas,
Defendants - Appellees.
SUJANIE V.S.V. GAMAGE, AKA No. 14-17034
Sujanie Gamage Samarasek,
D.C. No. 2:12-cv-00290-GMN-
Plaintiff, VCF
v.
STATE OF NEVADA, ex rel. Board of
Regents of Higher Education, on behalf of
the University of Nevada, Las Vegas; a
political subdivision of the State of
Nevada; VERNON HODGE, individually
and in his official capacity as an employee
of the University of Nevada, Las Vegas,
Defendants - Appellees,
v.
THE BACH LAW FIRM, LLC; JASON
BACH,
Movants - Appellants.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
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Argued and Submitted March 16, 2016
San Francisco, California
Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.
Sujanie Gamage (“Gamage”), her attorney Jason Bach (“Bach”), and The
Bach Law Firm appeal the district court’s order granting summary judgment in
favor of defendants State of Nevada and Vernon Hodge, as well as the district
court’s award of attorney’s fees and sanctions. We have jurisdiction under 28
U.S.C. § 1291. We review de novo the district court’s summary judgment order.
Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). We review discovery
orders, attorney’s fees awards, and sanction orders for abuse of discretion. See
United States v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002)
(discovery orders); Thomas v. City of Tacoma, 410 F.3d 644, 647 (9th Cir. 2005)
(attorney’s fees under 42 U.S.C. § 1988); Kaass Law v. Wells Fargo Bank, N.A.,
799 F.3d 1290, 1293 (9th Cir. 2015) (sanctions under 28 U.S.C. § 1927). We
affirm in part, but reverse the sanctions awarded against The Bach Law Firm under
28 U.S.C. § 1927. See Kaass Law, 799 F.3d at 1293.
Gamage argues that the district court erred in granting summary judgment to
the defendants because she raised genuine issues of material fact about whether she
plagiarized a draft of her dissertation. We disagree. Gamage admitted that she
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failed to conform to the University of Nevada - Las Vegas’s plagiarism policy in
parts of her dissertation and that she made “mistakes.” She received more process
than was due. See, e.g., Goss v. Lopez, 419 U.S. 565, 581 (1975) (holding that
procedural due process requires that a student suspended for disciplinary reasons
“be given oral or written notice of the charges against [her] and, if [she] denies
them, an explanation of the evidence the authorities have and an opportunity to
present [her] side of the story.”).1
Gamage also asserts that the district court erred in granting summary
judgment because it failed to consider all the evidence supporting her claims. The
record belies this argument. First, because the district court deferred ruling on the
motion for summary judgment under Federal Rule of Civil Procedure 56(d),
Gamage was able to take additional discovery. She chose not to supplement the
record or amend her opposition after discovery closed. The district court also
provided Gamage the opportunity to supplement the record at oral argument and
addressed the evidence she submitted. Finally, Gamage has not shown that any of
1
For purposes of this appeal, we assume, but do not decide, that Gamage
was removed for disciplinary, not academic, reasons. Cf. Oyama v. Univ. of Haw.,
813 F.3d 850, 875 (9th Cir. 2015) (explaining that disciplinary dismissals “may
require more formal procedures” than academic dismissals, which “do not require a
hearing and meet the requirements of procedural due process so long as the
dismissal decision is careful and deliberate” (alteration and internal quotation
marks omitted)).
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the evidence allegedly ignored by the district court would have raised a genuine
issue of material fact. See U.S. Cellular Inv. Co. of L.A. v. GTE Mobilnet, Inc., 281
F.3d 929, 934 (9th Cir. 2002) (stating that Rule 56(f) requires movant to show
“how allowing additional discovery would have precluded summary judgment”
(internal quotation marks and citation omitted)).2
The district court awarded attorney’s fees and costs against Gamage for
pursuing a frivolous action under 42 U.S.C. § 1988 and Nevada Revised Statute
18.010(2)(b). The district court also sanctioned Bach under 28 U.S.C. § 1927 after
finding that he “recklessly [and] in bad faith” multiplied the proceedings. See
United States v. Blodgett, 709 F.2d 608, 610 (9th Cir. 1983). The district court did
not abuse its discretion in finding that Gamage’s action as a whole was frivolous or
that Bach multiplied the proceedings recklessly and in bad faith.3 See Harris v.
Maricopa Cty. Superior Court, 631 F.3d 963, 971 (9th Cir. 2011) (holding that
2
“[F]ormer Rule 56(f) . . . is substantively the same as current Rule 56(d).”
Michelman v. Lincoln Nat’l Life Ins. Co., 685 F.3d 887, 899 n.7 (9th Cir. 2012).
3
At oral argument, Bach’s attorney argued for the first time that Eleventh
Amendment immunity did not bar Gamage’s claims under Embury v. King, 361
F.3d 562 (9th Cir. 2004). Bach did not raise this argument before the district court
or in his briefs before this court. Accordingly, Bach waived this argument. See
United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005) (“Generally, an issue
is waived when the appellant does not specifically and distinctly argue the issue in
his or her opening brief.”). The district court did not abuse its discretion in
sanctioning Bach under § 1927.
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attorney’s fees awards are available under § 1988 for frivolous actions); Blodgett,
709 F.2d at 610 (holding that sanctions under § 1927 are available when an
attorney recklessly or in bad faith multiplies the proceedings); Rodriguez v.
Primadonna Co., LLC, 216 P.3d 793, 800 (Nev. 2009) (stating that NRS
18.010(2)(b) permits attorney’s fees award for frivolous actions). Nor did the
district court err in awarding prejudgment interest on attorney’s fees, see Albios v.
Horizon Cmtys., Inc., 132 P.3d 1022, 1035-36 (Nev. 2006), in declining to itemize
the fees associated with each of Gamage’s claims, see Hensley v. Eckerhart, 461
U.S. 424, 438 (1983), or in issuing sanctions under § 1927 without holding an in-
person hearing, see Pac. Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d
1112, 1118 (9th Cir. 2000). Sanctions were properly imposed on Gamage and her
lawyer.
The district court also sanctioned The Bach Law Firm under 28 U.S.C.
§ 1927. We vacate this award in light of our recent decision in Kaass Law, 799
F.3d at 1293, which was issued after the district court considered sanctions in this
matter.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART AND REVERSED IN PART.
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